Jeffrey T. Petitti v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 13-3469

JEFFREY T. PETITTI, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued May 5, 2015 Decided October 28, 2015)

Michael S. Just, of Providence, Rhode Island, for the appellant.

Brent Bowker, with whom Will A. Gunn, General Counsel; Mary Ann Flynn, Assistant

General Counsel; and Kenneth A. Walsh, Deputy Assistant General Counsel, were on the brief, all

of Washington, D.C., for the appellee.

Before HAGEL, Chief Judge, and SCHOELEN, and BARTLEY, Judges.

SCHOELEN, Judge: Jeffrey T. Petitti appeals through counsel, a November 20, 2013, Board

of Veterans' Appeals (Board) decision that denied entitlement to a disability rating in excess of 40%

for rheumatoid arthritis (RA). Record (R.) at 3-21. This matter was referred to a panel of the Court

to address, with oral argument, whether the Board erred in concluding that Mr. Petitti was not

entitled to a minimum compensable disability rating for each affected joint under 38 C.F.R. § 4.71a,

Diagnostic Code (DC) 5002, as read in light of 38 C.F.R. § 4.59. As explained below, the Court

concludes that objective evidence of painful motion is required under DC 5002. However, the Court

will reverse the Board's factual finding that Mr. Petitti did not have such objective confirmation of

painful motion. The Board decision will be vacated and the matter will be remanded for further

adjudication so that the Board may determine the proper disability rating for Mr. Petitti's RA.

I. BACKGROUND

A. Active Duty

Mr. Petitti served on active duty in the U.S. Air Force from July 1985 to July 1991 and from

November 1993 to May 1995. R. at 1003-06. Service treatment records indicate that, in June 1994,

Mr. Petitti was seen for a sudden onset of burning pain in his hands, wrists, and feet that was

accompanied by swelling, stiffness, and erythema. R. at 794-96, 797, 899. Over the course of the

next several months, these symptoms continued, worsened, and spread to the elbows, shoulders,

knees, ankles, and hips. R. at 799-824, 897-98, 912. Mr. Petitti also experienced "considerable"

morning stiffness for 2 to 3 hours with intermittent redness and tenderness in the hands, which was

aggravated with activity. R. at 808, 894. He could no longer work at his private job as a landscaper,

and he had difficulty with certain tasks, such as washing dishes. R. at 894. By September 1994,

Mr. Petitti was diagnosed by a military physician with seronegative RA and placed on an

immunosuppressive drug regimen. R. at 824.

In November 1994, Mr. Petitti underwent an Air Force Medical Evaluation Board

proceeding. R. at 695-96. He was provided a physical examination, which indicated that he had

compression tenderness of the wrist and fingers with "mild synovial bogginess"1 in the fingers.

R. at 696. Additionally, there was tenderness with range of motion of the shoulders and right hip.

Id. Mr. Petitti's medication for his RA was continued, but he showed no significant improvement.

Id. For example, pain in his hands and feet increased. In May 1995, Mr. Petitti was honorably

discharged and placed on the Temporary Disability Retired List (TDRL). R. at 1456-57.

B. Postdischarge

In May 1995, Mr. Petitti submitted a claim for VA disability benefits for RA. R. at 1452-55.

In a June 1995 outpatient treatment record from the Rheumatology Clinic at the Madigan Army

Medical Center in Tacoma, Washington, a military physician indicated that Mr. Petitti continued to

complain of early morning stiffness, which improved with medication. R. at 1445. However, before

each dose of medication was administered, his symptoms had also increased. Id. The physician

1

"Synovitis" is inflammation of a synovium (membrane); it is usually painful, particularly on motion, and is

characterized by a fluctuating swelling due to effusion within the synovial sac. DORLAND'S ILLUSTRATED MEDICAL

DICTIONARY 1856 (32 ed. 2012) [hereinafter DORLAND'S].

2

examined Mr. Petitti and noted that he had a full range of motion in all joints with some traces of

synovitis in the hands and right knee. Id.

In September 1995, a VA regional office (RO) granted disability compensation for RA and

assigned a 20% disability rating for this condition under DC 5002, effective May 23, 1995, the date

after he was separated from service.2 R. at 1438-41, 1005. Mr. Petitti did not appeal that decision

and it became final.

In September 1996, Mr. Petitti underwent a TDRL reexamination conducted by the Air Force

Physical Evaluation Board in which he reported having episodes of morning stiffness in his joints

that lasted anywhere from 20 minutes to as long as an hour. R. at 1433-35. On examination, he had

a full range of motion throughout all his joints with no evidence of redness, swelling, effusion, or

tenderness. R. at 1434. The diagnosis was "seronegative nonerosive [RA] that is currently in

remission." Id. The examiner noted that Mr. Petitti had a good response to medication; however,

Mr. Petitti stated that he could not perform the fine hand movement required of his previous military

job as an electronics technician or work in the private sector as a landscaper. Id. The examiner

opined that it was unlikely that Mr. Petitti could return to active duty or resume his former

occupations. R. at 1435. Finally, the examiner concluded that "although [Mr. Petitti's] arthritis has

been quiescent, the course of his arthritis is unpredictable and he could suffer a flare[up] in the

future." Id. Mr. Petitti was ultimately discharged from the Air Force with disability severance pay.

R. at 1436-37.

In June 2006, Mr. Petitti was seen and treated by a VA physician for complaints of increased

stiffness in his feet, hands, wrists, elbows, and ankles. R. at 1360. Because of swelling of the hands

and wrists in the mornings, he could not make a fist. Id. The swelling subsided during the day. Id.

Mr. Petitti also stated that when the weather changed, his condition became more symptomatic. Id.

Upon examination, the physician noted that Mr. Petitti's elbows and wrists were tender and that there

2

Under DC 5002, RA is rated one of two ways. If the RA is "active," then disability ratings from 20% to 100%

are assignable depending upon the severity of the symptoms. Alternatively, if the RA is not "active," it may be rated on

the basis of chronic residuals such as limitation of motion. 38 C.F.R. § 4.71a, DC 5002 (2015). DC 5002 provides that

the limitation of motion should be rated under the appropriate DCs for the joints involved. Id. When limitation of motion

is noncompensable, a 10% rating is applicable for each major joint or group of minor joints involved. These ratings are

to be combined but not added. The DC states that the limitation of motion must be "objectively confirmed by findings

such as swelling, muscle spasm, or other satisfactory evidence of painful motion." Id.

3

was a "trace" of synovitis in the wrists. Id. Additionally, there was crepitus in the knees without

effusion and tenderness in the toes. Id. The physician noted that Mr. Petitti had "definite [g]elling"3

and pain in his joints. Id. The physician remarked that Mr. Petitti was having a mild "rheumatoid

flare" and ordered additional medication. Id.

In February 2007, Mr. Petitti filed a claim for an increased rating for RA. R. at 1394. A VA

treatment note from that same month indicates that the main joints involved were his shoulders,

elbows, wrists, hands, feet, and ankles. R. at 1361. A VA physician examined Mr. Petitti and found

that he had synovitis of the right wrist with a trace of synovitis in his left wrist, and synovitis

bilaterally in the joints of the hands. Id.

A March 2007 VA treatment note indicates that Mr. Petitti reported morning stiffness that

lasted for 1 to 2 hours. R. at 1362. The VA physician examined Mr. Petitti and found that he had

no swollen or tender joints. R. at 1363.

In April 2007, Mr. Petitti underwent a VA infectious, immune, and nutritional disabilities

examination. R. at 1366-70. He reported that after a recent change in medication, his symptoms

were "stable." R. at 1367. The examiner noted that Mr. Petitti experienced general weakness and

fatigue. Id. Mr. Petitti reported monthly flareups, which lasted for one day. Id. His last flareup

occurred shortly before his examination. Id. He reported that he had more than six flareups in the

past year. Id. The flareups affected his energy level, and he could not work more than 20

consecutive minutes without resting. R. at 1370. Additionally, Mr. Petitti reported painful joints

in his hands. Id. His symptoms were worse in the morning upon awakening and improved during

the day with activity. R. at 1367. He experienced increased pain when he wrote for more than 5

minutes. R. at 1369. During the examination, he reported having a dull ache in his hands. R. at

1367. He had a full range of motion in the hands, feet, and ankles, which did not decrease with

repetitive motion. R. at 1368. However, Mr. Petitti reported that following repetitive motion testing

he had stiffness in the hands. Id.

Further, the examiner indicated that Mr. Petitti had been employed full time, and during the

past year, he had not lost any time from work. R. at 1369. However, he recently left his job as a

3

"Gelling" in arthritis means "becoming stiff and fixed in any position when movement does not occur for a

prolonged period." http://medical-dictionary.the free dictionary.com/gelling (last visited Oct. 26, 2015).

4

delivery driver because he was afraid that while driving his joint pain would be exacerbated. Id. The

examiner concluded that Mr. Petitti's RA had "significant effects" on his occupational ability because

of "decreased mobility, manual dexterity[,] lack of stamina," and increased tardiness. R. at 1370.

Additionally, the examiner concluded that the RA affected Mr. Petitti's daily activities. Id. For

example, the examiner indicated that Mr. Petitti's RA had a "mild" effect on recreation and travel

and a "moderate" effect on sports and exercise. Id.

In May 2007, the RO denied Mr. Petitti's claim for a rating increase. R. at 1354-58. In

September 2007, Mr. Petitti filed a Notice of Disagreement with that decision asserting that his RA

was frequently exacerbated. R. at 1351. In support of his claim, he submitted to the RO a note from

his treating VA rheumatologist stating that "[o]ver the past year, [Mr. Petitti's RA] has worsened

requiring additional medications to control his disease." R. at 1352. Mr. Petitti perfected his appeal

to the Board. R. at 1302.

In August 2011, the Board remanded the claim with instructions that Mr. Petitti undergo a

VA examination and obtain VA treatment records from March 2008 to the present. R. at 1260-66.

These records showed that Mr. Petitti experienced morning joint stiffness and fatigue. R. at 491-92,

494, 1226, 1330. Mr. Petitti rated his morning joint pain a 6 and on a scale of 1 to 10. R. at 278,

1037, 1200-01, 1226. This pain lasted from 30 minutes to 3 hours. R. at 178, 186, 215, 278, 1037,

1056. During the day, the pain was reduced to a 4 and increased to a 5 by the evening. R. at 278.

Additionally, VA medical treatment records indicate that Mr. Petitti's RA medication caused

recurrent rashes, with secondary infections, affecting many areas including his nose, right eye lid,

scalp, trunk, thighs, and pubic area. R. at 1054, 1059, 1129-30, 1177-78, 1200-01. He also suffered

from other symptoms that were attributed to his medication, including rapid heart beat, vertigo,

dizziness, headaches, and blurred visions. R. at 1192. As a result of these side effects, his

medication was periodically changed. R. at 1036. After receiving infusions of his latest RA

medication, Mr. Petitti experienced occasional incapacitating flareups that lasted 2 to 3 days, causing

him to miss work. Id.

In October 2011, Mr. Petitti underwent a VA examination. R. at 305-31. The examiner

noted that Mr. Petitti had pain and stiffness in his joints, including the ankles, knees, hands, and

back. Id. at 305. Mr. Petitti had a full range of motion of his joints, and the examiner remarked that

5

there was no objective evidence of painful motion during the range-of-motion testing or following

repetitive testing. Id. at 312-14, 318-20, 322-25. The 2011 VA examiner found that Mr. Petitti had

painful joints and noted that his RA caused "decreased mobility, weakness or fatigue, and pain."

R. at 321.

In November 2012, the RO increased the disability rating for the service-connected RA to

40%, effective October 11, 2011, the date of the VA examination. R. at 436-44. In January 2013,

the Board determined that Mr. Petitti was entitled to a 40% disability rating for the entire period

starting in February 2007. The Board also denied a disability rating in excess of 40% for RA.

R. at 427.

Mr. Petitti appealed the Board decision to the Court, and in July 2013, the parties filed a joint

motion for remand (JMR), which the Court subsequently granted. R. at 395. The parties agreed that

the Board did not provide an adequate statement of reasons or bases for its decision because the

Board did not discuss whether Mr. Petitti was entitled to an "additional, separate rating" under

38 C.F.R. § 4.59. R. at 397.

In September 2013, Mr. Petitti submitted an affidavit describing an increase in his

symptomatolgy and pain. R. at 35-36. He stated that his arthritis affected every joint in his body,

but that it was worse in his feet, ankles, knees, hips, fingers, and wrists. R. at 35. He noted that his

joints are swollen and ached when he awakened. Id. He rated his joint pain as an 8 or 9 on a scale

of 1 to 10. Id. Throughout the day, he suffered from a dull throbbing pain that he rated as a 4 to 5.

Id. When he suffered severe flareups, the pain remained high throughout the day and lasted from

2 to 4 days. Id. He also stated that his RA limited his ability to stand, walk, and sit. Id. He became

fatigued walking to the mailbox at the end of his driveway. Id. He could not sit for a long period

without his joints swelling and aching. Id. He missed work 4 to 5 times a year with each absence

lasting from 2 to 3 days. Id.

Additionally, Mr. Petitti submitted an affidavit from his daughter, who lived with him.

R. at 33-34. She attested to her father's difficulties in functioning because of his joint pain, noting

that he had difficulty holding a mug, preparing meals, and doing yard work. Id. She also observed

that prolonged standing and walking aggravated his symptoms. Id.

6

On November 20, 2013, the Board issued the decision on appeal. R. at 2-23. The Board

found that, throughout the period of the appeal, Mr. Petitti's disability "has primarily been manifested

by morning stiffness, pain, and periodic swelling of his hands, feet, ankles, elbows, wrists, shoulders,

and spine; fatigue; and flare ups occurring as frequently as once a month to once every five or six

months." R. at 16. Additionally, the Board found that "there is objective evidence of stiffness,

gelling, tenderness, and synovitis affecting multiple joints." Id. Further, the Board determined that

Mr. Petitti's complaints of joint pain were "credible and competent." R. at 20. Nonetheless, the

Board determined that Mr. Petitti was not entitled to a disability rating higher than 40% under DC

5002. R. at 16-17. Additionally, the Board determined that because the VA examinations did not

show "limited motion" on range- of-motion testing or "objective evidence of pain on movement even

following repetitive testing," Mr. Petitti was not entitled to a 10% disability rating for each joint

under 38 C.F.R. § 4.59. R. at 19.

II. THE PARTIES' ARGUMENTS

This case involves the interplay between 38 C.F.R. § 4.71a, DC 5002 and 38 C.F.R. § 4.59.

Initially Mr. Petitti argued that "§ 4.59 provides independent bases for awarding a compensable

rating." Appellant's Supplemental Memorandum of Law at 2. However, at oral argument, Mr. Petitti

agreed with the Secretary that § 4.59 does not create a "free-standing avenue" for compensable

disability ratings based on pain. See May 5, 2015, Oral Argument Recording at 18:08-38; Secretary's

Brief (Br.) at 9. Instead, at oral argument, Mr. Petitti agreed with the Secretary that § 4.59 and, in

this case DC 5002, work in tandem to authorize a minimum compensable rating of 10%, per joint,

to be combined but not added, for painful motion even though there is no actual limitation of motion.

See May 5, 2015, Oral Argument Recording at 18:08-38; Secretary's Br. at 9-11. However, the

parties do not agree on what constitutes painful motion and what evidence the Board is required to

consider when making this determination.

On the one hand, Mr. Petitti contends that the Board is required to consider all lay and

medical evidence regarding pain. Appellant's Br. at 7-9; Appellant's Reply Br. at 7-9; Appellant's

Supplemental Memorandum of Law at 1, 4-6. Mr. Petitti urges the Court to reverse the Board

decision and argues that the Board's decision failed to take into account the lay evidence regarding

7

Mr. Petitti's joint pain, which he experiences both at rest and while in motion during activities such

as walking, standing, and sitting. Appellant's Br. at 7-9; Appellant's Reply Br. at 1.

The Secretary counters that under § 4.59 painful motion is required and the mere presence

of joint pain is not sufficient. Secretary's Supplemental Memorandum of Law at 4-5, 8-10. Further,

he contends that "objective" evidence is the only evidence the Board may consider. Secretary's Br.

at 11; Secretary's Supplemental Memorandum of Law at 4, 8-10. Because the VA examinations did

not show that Mr. Petitti had painful motion during the range-of-motion testing, the Secretary argues

that the Board decision should be affirmed. Secretary's Br. at 9-10.

III. ANALYSIS

The "interpretation of a statute or regulation is a question of law," Lane v. Principi, 339 F.3d

1331, 1339 (Fed. Cir. 2003), and the Court's review is performed de novo, Kent v. Principi, 389 F.3d

1380, 1384 (Fed. Cir. 2004); see also Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (stating

that the canons of statutory interpretation also apply to interpreting regulations). Regulatory

interpretation begins with the language of the regulation, the plain meaning of which is derived from

its text and its structure. See Sharp v. Shinseki, 23 Vet.App. 267, 271 (2009); see also

McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008); Gardner v. Derwinski, 1 Vet.App. 584, 586

(1991) ("Determining a statute's [or regulation's] plain meaning requires examining the specific

language at issue and the overall structure of the statute [or regulation]." (citing Bethesda Hosp.

Ass'n v. Bowen, 485 U.S. 399, 403-05, (1988))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.

Cir. 1993), aff'd, 513 U.S. 115, 115, (1994). If the plain meaning of a regulation is clear from the

language, that meaning controls and that is the end of the matter. Pacheco v. Gibson, 27 Vet.App.

21, 25 (2014); Johnson v. Brown, 9 Vet.App. 369, 371 (1996). An agency's interpretation of an

ambiguous regulation is entitled to substantial deference by the Court so long as that interpretation

is not inconsistent with the language of the regulation or is otherwise plainly erroneous and

represents the agency's considered view on the matter. Mulder v. Gibson, 27 Vet.App. 10, 16 (2014)

(citing Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir. 2006) (citing Auer v. Robbins, 519 U.S.

452, 461-62 (1997))).

8

A. Interplay Between DC 5002 and § 4.59

To resolve the questions before the Court, it is necessary to examine DC 5002 and § 4.59.

Thus, the starting point is the text of the regulations.

Title 38 C.F.R. § 4.71a, DC 5002, describes how, under the disability rating schedule, RA

is to be evaluated as follows:

As an active process:

With constitutional manifestations associated with active joint involvement, totally

incapacity 100

Less than criteria for 100% but with weight loss and anemia productive of severe

impairment of health or severely incapacitating exacerbations occurring 4 or more

times a year or a lesser number over prolonged periods 60

Symptom combinations productive of definite impairment of health objectively

supported by examination findings or incapacitating exacerbations occurring 3 or

more times a year 40

One or two exacerbations a year in a well-established diagnosis 20

For chronic residuals:

For residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate

under the appropriate diagnostic codes for the specific joints involved. Where

however, the limitation of motion of the specific joint or joints involved is

noncompensable under the codes a rating of 10 percent is for application for each

such major joint or group of minor joints affected by limitation of motion, to be

combined, not added under diagnostic code 5002. Limitation of motion must be

objectively confirmed by findings such as swelling, muscle spasm, or satisfactory

evidence of painful motion.

Note: The ratings for the active process will not be combined with the

residual ratings for limitation of motion or ankylosis. Assign the

higher evaluation.

9

38 C.F.R. § 4.71a, DC 5002 (emphasis added). Thus, under DC 5002, a claimant with RA is given

the higher of two evaluations evaluated either (1) as an active process or (2) based on the chronic

residuals associated with the disease such as limitation of motion or ankylosis.

For chronic residuals, the first sentence of DC 5002 provides that a claimant is to be

evaluated under the DC that is appropriate for the specific joint involved. If the claimant has actual

limitation of motion, which meets the criteria of the appropriate DC involved, he or she may be

assigned the corresponding disability rating under the relevant DC. However, the second sentence

of DC 5002 regarding chronic residuals goes on to state that limitation of motion that is

noncompensable under the appropriate DC for the affected joint may still be compensable on the

basis of a minimum disability rating for each major joint or group of minor joints affected. The last

sentence of DC 5002 provides that limitation of motion must be objectively confirmed by, among

other things, satisfactory evidence of painful motion. Thus, the plain language of DC 5002 makes

limitation of motion a prerequisite for both a compensable disability rating under the DC relevant

to the particular joint involved and for a minimum disability rating.

Section 4.59 is one of several regulations that precede the rating schedule for the

musculoskeletal system and explain how to arrive at proper evaluations under the DCs appearing in

the disability rating schedule. See generally DeLuca v. Brown, 8 Vet.App. 202, 204-08 (1995);

Schafrath v. Derwinski, 1 Vet.App. 589, 591-93 (1991). Section 4.59, entitled "Painful Motion,"

provides:

With any form of arthritis, painful motion is an important factor of disability, the

facial expression, wincing, etc., on pressure or manipulation, should be carefully

noted and definitely related to affected joints. Muscle spasm will greatly assist the

identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The

intent of the schedule is to recognize painful motion with joint or periarticular

pathology as productive of disability. It is the intention to recognize actually painful,

unstable, or malaligned joints, due to healed injury, as entitled to at least the

minimum compensable rating for the joint. Crepitation either in the soft tissues such

as the tendons or ligaments, or crepitation within the joint structures should be noted

carefully as points of contact which are diseased. Flexion elicits such manifestations.

The joints involved should be tested for pain on both active and passive motion, in

10

weight-bearing and nonweight-bearing and, if possible, with the range of the opposite

undamaged joint.

38 C.F.R. 4.59 (2015) (emphasis added).

The first sentence of § 4.59 notes that painful motion is an important factor of a disability.4

The fourth sentence of the regulation goes on to state that it is the intent of the rating schedule to

recognize that painful motion of a joint is capable of causing disability, and the fifth sentence ensures

that a veteran experiencing an "actually" painful joint is entitled to at least the minimum

compensable rating for the joint under the appropriate DC to the joint involved.5,6

Hence, the plain language of DC 5002 and § 4.59 each provide that a claimant may be

entitled to a minimum disability rating. Under DC 5002, a minimum disability rating is triggered

where there is limitation of motion, which is manifested by "satisfactory evidence of pain." Under

§ 4.59, the trigger for a minimum disability rating is an "actually painful, unstable, or malaligned

joint[ ]." Section 4.59 plainly speaks to both the "painful motion" of joints and "actually painful"

joints. "Actually" means "existing in fact or reality." WEBSTER'S THIRD NEW INTERNATIONAL

DICTIONARY 22 (1961) [hereinafter WEBSTER'S]. Reading § 4.59 and DC 5002 together, the Court

finds the terms "painful motion" and "actually painful motion" to be synonymous. We cannot

conceive of a situation in which an "actually painful" joint would not necessarily connote a joint that

was painful on motion. As discussed more fully below, prior Court interpretations guide the Court

as to the meaning of the terms "limitation of motion" and "painful motion," referred to in these

4

In Burton v. Shinseki, 25 Vet.App. 1, 5 (2011), the Court held that the regulation is not limited to arthritis.

5

At oral argument, the Secretary stated that this sentence of the regulation applies to painful motion that is

caused by either a healed injury or a disease. See May 5, 2015, Oral Argument Recording at 29:30-31:25.

6

In his brief, the Secretary contends that, under his longstanding interpretation of § 4.59, a claimant is entitled

to a minimum compensable disability rating for a joint where there is "painful motion" even though there is no actual

limitation of motion. Secretary's Br. at 9-10. The Secretary also notes that he espoused this view in VA Gen. Coun.

Prec. 9-98 (Aug. 14, 1998). Id. Additionally, the Court observes that the Secretary has taken this view in previous

pleadings filed with this Court. See Mitchell v. Shinseki, U.S. Vet. App. No. 09-2169, Secretary's Response (Resp.) to

April 6, 2011, Order at 1 (stating a veteran is entitled to a minimum compensable disability rating for a joint where there

is "painful motion" even though "there is no actual limitation of motion that meets a compensable threshold under the

applicable diagnostic criteria"); see also Burton v. Shinseki, U.S. Vet. App. No. 09-2873, Secretary's Resp. to

May 9, 2011, Order at 2-3.

11

regulations, and how they operate together to enable a claimant to receive a minimum compensable

disability rating.

B. Prior Court Interpretations

In Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991), this Court analyzed the relationship

between § 4.59 and DC 5003 (for degenerative arthritis). The Court's discussion is particularly

instructive because the structure and language of DC 5003 is similar to those of DC 5002. Under

both DCs, a claimant whose arthritis limits the range of motion of a joint or joints will be evaluated

under the DCs specifically applicable to the particular joint or joints when the limitation is

compensable. Such a claimant will be assigned a compensable rating for actual limitation of motion

under the DC for the specific joints involved. Additionally, DC 5003, like DC 5002, provides that

limitation of motion that is noncompensable under the DC for the affected joint may otherwise

entitle a veteran to a 10% disability rating for each major joint or group of minor joints affected,

where there is limitation of motion objectively confirmed by "satisfactory evidence of painful

motion."

In Lichtenfels, the Court held that "[r]ead together, DC 5003[] and § 4.59, thus state that

painful motion of a major joint or groups [of minor joints] caused by degenerative arthritis, where the

arthritis is established by x-ray, is deemed to be limited motion and entitled to a minimum 10[%]

rating, per joint, . . . even though there is no actual limitation of motion." 1 Vet.App. at 488

(emphasis omitted). Thus, Lichtenfels concluded that the minimum disability rating under DC 5003

(for limitation of motion manifested by pain) dovetails with the minimum disability rating under

§ 4.59 (for painful motion). Essentially, Lichtenfels held that § 4.59 serves as a bridge linking painful

motion and limitation of motion, with the result that a claimant who has painful motion is considered

to have limited motion under DC 5003 even though actual motion is not limited. Lichtenfels, supra.

Because of the striking similarities between the language in DCs 5002 and 5003 pertaining to the

assignment of a minimum rating for noncompensable limitation of motion, the Court concludes that

Lichtenfels's interpretation of the effect of § 4.59 on DC 5003 also applies to DC 5002.7 Thus, when

7

The Court recognizes that DC 5002 and DC 5003 are not identical. Under DC 5003, a claimant need not

demonstrate limitation of motion—which, as we have just clarified, can be evidenced by a showing of painful

motion—when the claimant has x-ray evidence of degenerative arthritis involving two or more major joints or two or

more minor groups of joints. DC 5002 does not have a corresponding x-ray provision. However, this difference between

12

DC 5002 is read in conjunction with § 4.59, painful motion of a joint is deemed to be limited motion

of that joint, and evidence of painful motion satisfies the requirement for limited motion under DC

5002. Because the Court holds that § 4.59's reference to "painful motion" is equated with the

reference to "limitation of motion" in DC 5002, a claimant with RA who demonstrates that he has

painful motion of a joint is entitled to the minimum disability rating for that joint under DC 5002 and

§ 4.59, even though the claimant does not have actual limitation of motion.

Further, it is important to view the Court's holding in this case in relation to

Mitchell v. Shinseki, 25 Vet.App. 32 (2011). In Mitchell, the appellant was seeking a disability rating

increase in excess of 10% for the residuals of reconstructive surgery of the anterior cruciate ligament

of the left knee. Because the limitation of motion of her knee was noncompensable under the

appropriate DCs for flexion and extension of the knee, she was assigned a 10% disability rating under

the second part of DC 5003 for painful motion of the knee.

Not satisfied with the minimum disability rating, Ms. Mitchell argued that because she

experienced pain throughout the entire range of motion of her left leg, and because Lichtenfels held

that painful motion is deemed limited motion, the Board should have considered that the motion of

her left knee was completely limited and assigned the maximum disability ratings under the DCs for

flexion and extension because her painful motion was equivalent to limited motion at those levels.

Id. at 34. The Court in Mitchell specifically rejected this argument. The Court noted that the

statement in Lichtenfels equating painful motion with limited motion was made in the context of a

discussion of a minimum disability rating and did not "suggest that maximum disability ratings were

appropriate compensation" for painful motion where the range of motion is not actually limited.8

Here, like Ms. Lichtenfels, Mr. Petitti is seeking the minimum disability rating. Thus, he did not have

to show actual limitation of motion that corresponds to the requirements of the appropriate DC for

the two DCs is not pertinent to the Court's holding in this case, which is based upon the notable similarities between the

language of the two DCs regarding limitation of motion, i.e., painful motion, as a basis for a minimum disability rating.

8

Mitchell also discussed 38 C.F.R. §§ 4.40 and 4.45, regulations that are not relevant to Mr. Petitti's argument

for the minimum disability rating for painful motion under DC 5002 and § 4.59. Consideration of these regulations might

result in a disability rating higher than the minimum disability rating for a particular joint. Mitchell aptly stated that under

these regulations "pain in and of itself does not rise to the level of functional loss." Mitchell, 25 Vet.App. at 37.

Rather,"pain may result in functional loss, but only if it limits the ability 'to perform the normal working movements of

the body with normal excursion, strength, speed, coordination[,] or endurance.'" Id. (quoting 38 C.F.R. § 4.40 (2011)).

13

the individual joints. Moreover, because Mr. Petitti is seeking only a minimum disability rating, the

Court's holding here is consistent with Mitchell.

C. Painful Motion

Having concluded that DC 5002, when read in light of § 4.59, authorizes the minimum

disability rating per joint where there is painful, albeit nonlimited, motion, the question remains what

constitutes painful motion and what type of evidence is sufficient under the regulation to verify

painful motion. Mr. Petitti contends that the Board should make the determination as to painful

motion based on all evidence, including lay and medical evidence, regarding pain, including the

effects of pain on the use of joints in everyday activity such as walking, sitting, and standing.

Appellant's Br. at 7-9; Appellant's Reply Br. at 7-9. Appellant's Supplemental Memorandum of Law

at 1, 4-6. The Secretary takes a much narrower view and contends that the Board determination is

to be based only on objective evidence. In this case, he contends that the only objective evidence of

painful motion is in the form of the range-of-motion testing. Secretary's Br. at 11; Secretary's

Supplemental Memorandum of Law at 4, 8-10.

At oral argument, the Secretary noted that the language of § 4.59 does not state that

assignment of a minimum compensable disability rating for a joint requires objective evidence of

painful motion. See May 5, 2015, Oral Argument Recording at 38:40-48. Nevertheless, the Secretary

contends that, when § 4.59 and DC 5002 are read together, it is clear that objective evidence of

painful motion is required. He takes this position because he contends that DC 5002 requires

objective evidence of painful motion. The Court agrees that § 4.59 does not require objective

evidence of painful motion. The regulation does not speak to the type of evidence required when

assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to

"objective" evidence.

Turning to DC 5002, that regulation states that "[l]imitation of motion must be objectively

confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion."

This sentence plainly requires that "limitation of motion" be "objectively confirmed." "Objective"

means "perceptible to persons other than an affected individual." WEBSTER'S at 1556; see also

DORLAND'S at 1309 (defining "objective" as "perceptible to the external senses"). "To confirm"

means "to give new assurance of the truth or validity of: CORROBORATE." WEBSTER'S at 476.

14

Hence, DC 5002 requires that limitation of motion must be corroborated by a person other than the

veteran based upon that person's observations.

DC 5002 also describes the evidence that will "objectively confirm" limitation of motion. The

verb "confirmed" is followed by the prepositional phrase "by findings such as swelling, muscle spasm,

or satisfactory evidence of painful motion." This phrase contains examples of evidence that indicate

that a veteran has "limitation of motion." The use of the words "such as" in the phrase connotes that

the examples provided are incomplete and part of a nonexhaustive list. The first two examples,

"swelling" and "muscle spasm," are specific findings that, if present, "objectively confirm" limitation

of motion. The series is completed by the third item: "or satisfactory evidence of painful motion."

Unlike the first two items, which are specific and require that a "finding[ ]" be made, the last is

general and broadly worded so that it would include any information that adequately demonstrates

that a veteran has painful motion. Hence, a doctor's observations of a veteran's painful

motion–including that observed during range-of-motion tests–fall within the ambit of "satisfactory

evidence of painful motion."

However, contrary to the Secretary's assertions, lay statements or evidence may also be

included within the umbrella of "objectively confirmed" evidence of painful motion. Because

"satisfactory evidence of painful motion" is capacious, it not only includes a doctor's observations of

a veteran's painful motion, but also encompasses lay descriptions of a veteran's painful motion.

Observations from a lay person who witnesses a veteran's painful motion satisfies the requirement

of objective and independent verification of a veteran's painful motion. Thus, the visible behavior

or facial expression of a veteran observed by another may constitute "satisfactory evidence of painful

motion." Cf. 38 C.F.R. § 4.59 (noting that "facial expression, wincing, etc." are useful indicators of

painful motion). Therefore, a lay description detailing observations of a veteran's difficulty walking,

standing, sitting, or undertaking other activity falls within the scope of "satisfactory evidence of

painful motion" that has been "objectively confirmed."9

9

VA has promulgated a regulation pertaining to disability compensation benefits for undiagnosed illnesses

associated with Persian Gulf veterans. Under that regulation, "'objective indications of chronic disability,' include both

'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical

indicators that are capable of independent verification." 38 C.F.R. § 3.317(a)(3) (2015). Although this regulation

involves a different context (i.e., service connection for disability compensation for Persian Gulf illnesses), VA has

recognized that "objective" manifestations of an undiagnosed illness not only include the "objective perceptible"

15

Lay testimony may also consist of a veteran's own statements to the extent that the statements

describe symptoms capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.

Cir. 2007) (lay persons are generally competent to provide evidence on observable symptoms); see

also 38 C.F.R. § 3.159(a)(2) (2015). However, because DC 5002 requires that "satisfactory of

evidence of pain" be "objectively confirmed," a veteran's testimony, alone, is not enough. There must

also be objective confirmation from a person other than the veteran or claimant, be it a medical

examiner or a lay person, of a veteran's joint pain. Having examined the language of DC 5002, the

Court concludes that the Secretary is correct that the provision requires objective evidence of painful

motion, but is unpersuaded by his contention that such confirmation is limited to a doctor's finding,

specifically involving range-of-motion tests.

Our conclusion is buttressed by Lichtenfels, which is illustrative as to the evidence the Board

must consider in determining whether painful motion is present. In Lichtenfels, the appellant was

seeking a 10% disability rating for arthritis of the lumbar spine under DC 5003. Like DC 5002,

limitation of motion under DC 5003 "must be objectively confirmed by findings such as swelling,

muscle spasm, or satisfactory evidence of pain." The evidence before the Board included a VA

examination in which Ms. Lichtenfels had full range of motion of the lumbar spine without pain or

tenderness. The VA examiner also found that she had a history of recurrent arthralgia.10

Additionally, Ms. Lichtenfels reported to the examiner that when she woke up in the morning, she

experienced stiffness and aching all over her lower back, which improved during the day with

activity. Lichtenfels, 1 Vet.App. at 485.

The Board denied Ms. Lichtenfels a minimum disability rating under DC 5003 for the lumbar

spine on the basis that she had a full range of motion of the back without pain. The Court reversed

the Board's finding as clearly erroneous and ordered that Ms. Lichtenfels be assigned a minimum

(10%) disability rating for her lumbar spine because the evidence showed that she had backaches in

the morning and "recurrent arthralgia." Lichtenfels, 1 Vet.App. at 487. Thus, Lichtenfels found that,

evidence from a physician but also other evidence, such as lay testimony, that is "capable of independent verification."

It is apparent from the broad language of DC 5002 that "objectively confirmed" findings of painful motion, like

"objective indications" in 38 C.F.R. § 3.317(a)(3), include both medical and lay evidence.

10

"Arthraglia" is "pain in a joint." DORLAND'S at 150.

16

under DC 5003, a claimant's assertion of painful joints, confirmed by a VA examiner's statement that

the claimant has a history of "recurrent" joint pain, is satisfactory evidence of painful motion under

DC 5003. If painful motion on range-of-motion tests were the only acceptable evidence of painful

motion, Lichtenfels would not have reversed the Board decision finding it clearly erroneous.

Here, the record is replete with medical evidence and lay testimony regarding Mr. Petitti's

actually painful joints. In September 2013, the appellant and his daughter submitted affidavits

describing his actually painful joints and the effects of his pain on his daily activities, including

standing, walking, and sitting. The Board described the affidavits as follows:

His daughter related that her father is walking slower and needing to take more

frequent breaks from activities. She stated she has to provide him assistance,

especially in the mornings. She mentioned the pain [Mr. Petitti] experiences and how

it is worse during weather changes and during flare-ups. [Mr. Petitti] stated his joints

are swollen and ache when he wakes up for about an hour or so. He described the

pain as "dull" and "throbbing" and that it lasts all day. He stated that he has severe

flare-ups about 3 to 4 times a year that will last 2 to 4 days at a time. He reported that

his arthritis limits his ability to stand, walk and sit. He stated he is extremely fatigued

and has trouble even walking to his mailbox. He indicated he works as a sales

associate and his job requires two hours of walking a day. He related that he has about

4 to 5 absences from work a year and misses 2 to 3 days each time.

R. at 16. The Board found the lay evidence that RA is manifested by dull and throbbing joint pain

"competent and credible." R. at 16, 20. Additionally, the 2007 VA examiner found that Mr. Petitti

had painful joints with "decreased mobility, decreased manual dexterity, and lack of stamina."

R. at 1370. A 2011 VA examiner made similar findings of painful joints and noted that Mr. Petitti's

RA caused "decreased mobility, weakness or fatigue, and pain." R. at 321. Based on the lay and

medical evidence, the Board found that Mr. Petitti's disability "has primarily been manifested by

morning stiffness, pain and periodic swelling of his hands, feet, ankles, elbows, wrists, shoulders, and

spine; fatigue; and flare-ups occurring as frequently as once a month to once every five or six

months." R. at 16. Additionally, the Board found that there "is objective evidence of stiffness,

gelling, tenderness and synovitis affecting multiple joints." Id. In describing Mr. Petitti's disability

picture, the Board found that "[t]here is no doubt that pain exists that is daily and causes fatigue and

stiffness." R. at 19.

17

Despite these findings, the Board determined that Mr. Petitti did not have painful motion of

the joints because the VA examiner found that he did not have painful motion during range-of-motion

tests performed on the joints. Id. The Court finds that the Board erred in concluding that painful

motion may be established only by an examiner's findings on range-of-motion tests of the joints.

Given the Board's finding that Mr. Petitti was credible, the Board's acceptance of the lay evidence

from the veteran's daughter regarding her observations as to the effects of his joint pain on his daily

activities, and the Board's notation as to the objective findings made by several VA examiners, the

Court holds that the Board's conclusion that Mr. Petitti did not have objective evidence of painful

motion of the joints is clearly erroneous. Indeed, the Board's specific findings regarding the evidence

support the opposite conclusion: Mr. Petitti had satisfactory evidence of "actually painful" joints; thus,

within the meaning of DC 5002, Mr. Petitti had "satisfactory evidence of painful motion." Therefore,

the Court will reverse the Board's finding that Mr. Petitti did not have objective evidence of painful

motion and remand the matter to the Board to determine the specific joints affected by RA and

whether Mr. Petitti would receive a higher disability rating for the chronic residuals of his RA.11

Reversal is appropriate "where the Board has performed the necessary fact finding and explicitly

weighed the evidence" and this Court, based "on the entire evidence, . . . is left with the definite and

firm conviction that a mistake has been committed." Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.

Cir. 2013); see Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) ("[R]eversal is the appropriate remedy

when the only permissible view of the evidence is contrary to the Board's decision.").

On remand, Mr. Petitti is free to submit additional evidence and argument in accordance with

Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi,

16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the justification

for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the

Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of

remanded claims).

11

The Court notes that the appellant clarified in his briefs that he is not arguing that he is entitled to a 40%

disability rating for RA as an active process in addition to a disability rating for this condition based on the chronic

residuals. He agrees that this combination is not permissible under the regulations and would constitute pyramiding, i.e.,

compensating a veteran more than once for the "same disability" or the "same manifestation." 38 C.F.R. § 4.14 (2015).

18

IV. CONCLUSION

After consideration of the appellant's and the Secretary's briefs, and a review of the record on

appeal, the Court will REVERSE the Board's finding that Mr. Petitti did not have objective evidence

of painful motion, VACATE the November 20, 2013, Board decision, and REMAND the matter for

further adjudication so that the Board may determine the proper disability rating for Mr. Petitti's RA.

19